1. -Aggrieved by the judgment dated 16.11.1990, passed by the Court of Sessions, Sikar, the accused-appellants, Arvind Kumar @ Nemichand, Surja Ram @ Surajmal, Ramnarayan, Birbal, Birju @ Brij Mohan have approached this court by filing D. B. Criminal Appeal No.449/1990. Meanwhile, aggrieved by the same judgment, the State of Rajasthan has filed D. B. Criminal Appeal No.523/1991. Since both these appeals arise out of the same impugned judgment, they are being decided by this common judgment.

2. By the said judgment the learned Judge had convicted and sentenced the accused appellants as under:

Arvind Kumar @ Nemichand, Surja Ram @ Surajmal, Ramnarayan, Birbal and Birju @ Brij Mohan were convicted for offences under Sections 148, 448 IPC. Arvind Kumar @ Nemichand and Surja Ram @ Surajmal were substantively convicted for offence under Section 302 IPC; Ramnarayan, Birbal and Birju @ Brij Mohan were convicted for offence under Section 302 read with Section 149 IPC. By a separate order of even date appellants, Arvind Kumar @ Nemichand and Surja Ram @ Surajmal, for offence under Section 302 IPC, and Ramnarayan, Birbal and Birju @ Brij Mohan, for offence under Section 302 read with 149 IPC, were sentenced to life imprisonment and pay a fine of Rs. 1000/-, in default whereof they were directed to further undergo six months of additional sentence. For offence under Section 148 IPC, all the five appellants were sentenced to six months imprisonment, and for offence under Section 448 IPC they were sentenced to three months of imprisonment. All the sentences were directed to run concurrently.

3. Moreover, by the impugned judgment, the learned Judge had acquitted Arvind Kumar, Surjaram, Ramnarayan, Birbal, Brij Mohan for offences under Sections 323/149, 148, and 448 IPC. The learned Judge had also acquitted Harlal and Harphool of offences under Sections 147, 323/149, 302/149, and 447 IPC. Hence, the State of Rajasthan has filed the criminal appeal against the accused respondents.

4. Briefly, the facts of the case are that on 19.7.1989, Harlal Singh (P.W.5) lodged a written report (Ex.P.12) with the S.H.O., Police Station, Laxmangarh, Distt. Sikar. When translated into English, the said written report (Ex.P.12) reads as under:

To,

The SHO,

Police Station Laxmangarh,

Distt. Sikar

Sir,

It is humbly submitted that yesterday, on 18.7.1989, around midnight my brother Laduram s/o Baksaram, and his two sons, Surendra and Prakash were sleeping in the courtyard. My brother Ladurams brother-in-law, Chandraram, and Ramlal s/o Juwara, by caste Jat, resident of Madhopura were also sleeping with us. Ladurams elder son, Brijendra, and his younger son, Mohan, were sleeping at a separate house constructed by Brijendra on the western side of the well. Suddenly, about 20-25 persons came, cursed and dragged out Brijendra and Mohan from the homes. They started assaulting them with barchhi (small axe), bhala (spear), lathies (wooden sticks), and swords. Brijendras wife raised an alarm. Then, I, my brother Laduram, my nephews Surendra, Prakash and Chandraram, and Ramlal rushed to their rescue. We carried lathis with us. The moment we reached there, Surjaram s/o Hukumaram, by caste Jat, resident of Rehnawa, and his son, Arvind @ Nemichand said now the true enemy, Laduram has come. Saying this, both of them attacked him with farsies which they were carrying. With this, Birju s/o Khumaram, by caste Jat, resident of Khevasar, Ramnarayan s/o Rambux started attacking him. Laduram was killed at the spot; Mohan, Brijendra, Prakash, Surendra sons of Laduram, and Chandraram were badly injured. Thinking that they had expired, the accused ran away. Brijendra and Surendra in order to protect themselves, inflicted lathi blows on Arvind and Ramnarayan. Arvind and Ramnarayans companions also said, while leaving, that they had killed Tara Singh Jat of Roru, so then who are we? Those whom I have named, I know them. Others I dont know them, but I can recognise them if they were brought